Search form

Featured Topics

To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This case is before the Authority on an application for review of the Regional Director's (RD's) decision (Decision) that six employees should continue to be included in the bargaining unit. The Agency filed the application under § 2422.31(c) of the Authority's Regulations and the Union filed an opposition to the application.

The RD found that five employees should not be excluded from the bargaining unit under § 7112(b)(2) of the Federal Service Labor-Management Relations Statute (the Statute) as "confidential employees" as defined by § 7103(a)(13). The RD also found that one employee should not be excluded from the bargaining unit under § 7112(b)(3) of the Statute as an employee engaged in personnel work in other than a purely clerical capacity.

For the following reasons, we grant the application for review as to the Attorney Advisor, CU 905-15, and exclude the incumbent of that position from the bargaining unit as a confidential employee. We deny it in all other aspects.

II. Background and RD's Decision

As relevant here, the Agency petitioned to exclude five employees from the bargaining unit because they are confidential employees and thus excluded by § 7112(b)(2), and one other employee because the employee is engaged in personnel work in other than a purely clerical capacity and thus excluded by § 7112(b)(3). All of the employees' positions existed at the time of the election of NTEU as the exclusive representative, and all were included in the bargaining unit at that time. The six positions are:

In explaining why these employees should now be excluded from the bargaining unit, the Agency argued that the duties of each employee had undergone "meaningful changes" subsequent to NTEU being certified as the exclusive representative. Decision at 3. As a result of these changes in duties, the Agency asserted that the first five employees should now be excluded from the bargaining unit as confidential employees, and the sixth employee excluded from the bargaining unit as an employee engaged in personnel work in other than a purely clerical capacity. Id.

The RD stated that election agreement inclusions and exclusions to the bargaining unit remain binding unless the duties and functions of the position have changed meaningfully since that time,or the position was ineligible in the first instance under § 7112(b)(1) through § 7112(b)(7) of the Statute. [n1] Noting that the Agency had not alleged that the positions at issue were improperly placed on the eligibility list for the election, the RD stated that he was required only to determine whether the duties and functions of the positions had undergone meaningful changes since the Union was certified as the exclusive representative. The RD went on to find a meaningful change in the duties and functions of only the Budget Analyst and the Employee Development Specialist, and then determined whether either employee should be excluded from the bargaining unit. The RD concluded that that the Budget Analyst should not be excluded as a confidential employee, and that the Employee Development Specialist should not be excluded as an employee engaged in personnel work in other than a purely clerical capacity.

Notwithstanding his finding that the duties and functions of the four other employees had not changed meaningfully, the RD went on to address whether they should be excluded from the bargaining unit as confidential [ v61
p350 ] employees, and concluded that none should be excluded. In discussing why one employee should not be excluded, the RD found that the Attorney-Advisor, CU 905-15, was a confidential employee, but concluded that the employee should not be excluded from the bargaining unit because the employee's duties and functions had not changed sufficiently since the election to permit reconsideration of her bargaining unit status. Decision at 23, 25 n.9.

Based on these findings, the RD denied the Agency's petition as to all six employees.

III. Positions of the Parties

A. Agency's Application for Review

As set forth below, the Agency argues that its application for review should be granted because: (1) there is an absence of precedent defining "meaningful changed circumstances;" (2) established law warrants reconsideration; and (3) there is an issue "regarding whether the RD applied established law." Application for Review (AFR) at 1-2 (citation omitted).

As for the first ground, the Agency claims that review is warranted regarding the Attorney-Advisor, Program Specialist, and Systems Accountant positions because there is a lack of precedent defining "meaningful changed circumstances" and the RD's findings regarding these positions involve that test. Id. at 3. In this regard, the Agency notes that the RD relied on two principal cases in his decision, i.e., Fed. Trade Comm'n, 15 FLRA 247 (1984) (FTC I), and Fed. Trade Comm'n, 35 FLRA 576 (1990) (FTC II). According to the Agency, neither case provides any definitive criteria of what constitutes "meaningful changed circumstances." Therefore, according to the Agency, the Authority should review this precedent and its application in this case, and conclude that the employees have had a meaningful change in their duties and functions since their positions were initially placed in the bargaining unit.

In that regard, the Agency argues that the incumbents in these positions gained access to confidential information concerning the Agency's labor-management relations program and developed a confidential relationship with an official involved with the Agency's labor negotiations. The Agency admits that these employees had no confidential assignments prior to the certification of the Union as the exclusive representative. After the Union was certified, however, the Agency claims that these employees were assigned duties relating to the labor relations function. As such, the Agency asserts that the duties and functions of these employees have undergone a meaningful change such that they should now be excluded from the bargaining unit.

As for the second ground, the Agency argues that "established law warrants reconsideration." AFR at 1-2. More specifically, the Agency argues that the RD's Decision fails to apply established law and thus warrants reconsideration because it would permit a confidential employee to be in a bargaining unit, in violation of the statutory prohibition against bargaining units including such individuals. Id. at 1-2, 8. The Agency notes the RD's finding that the Attorney-Advisor, CU 905-15, employee was a confidential employee, but because there had been no change in her position or duties since the election she should not now be excluded from the bargaining unit. The Agency argues that the RD's finding violates § 7112(b)(2) of the Statute, which prohibits a bargaining unit from being appropriate if it includes confidential employees, and cites to Headquarters, Fort Sam Houston, Fort Sam Houston, Tex., 5 FLRA 339 (1981) (Fort Sam Houston) in support of its argument. Therefore, because the RD found that the employee is a confidential employee, the Agency argues the Authority should comply with the requirement of § 7112(b)(2) and exclude the employee from the bargaining unit.

Finally, the Agency argues that the RD failed to apply established law to the other employees (all except the Attorney-Advisor, CU 905-15 position) regarding whether an employee is a confidential employee or an employee engaged in personnel work in other than a purely clerical capacity. AFR at 9. The Agency points to Authority precedent interpreting and applying the terms "confidential employee" and " employee engaged in personnel work in other than a purely clerical capacity," and argues that the RD misapplied this precedent to the facts of this case to improperly conclude that four of the remaining employees were not confidential employees, and that the one employee was not an employee engaged in personnel work in other than a purely clerical capacity. Consequently, the Agency asserts these employees should have been excluded from the bargaining unit for the reasons asserted.

B. Union's Opposition

The Union contends that the application for review is no more than a lengthy expression of disagreement with Authority precedent and with the RD's factual findings and rulings, which are based on record evidence and have not been shown to be clearly erroneous. In this regard, the Union argues that the application fails to establish that the RD erred legally in applying the well-settled Authority precedent defining changed circumstance. [ v61
p351 ] According to the Union, the Agency simply disagrees with the RD's factual conclusion that the duties of four of the six employees' positions at issue did not significantly change after the election.

Regarding the Attorney-Advisor, CU 905-15, the Union states that the RD's decision, finding that the employee is a confidential employee but nevertheless remains in the bargaining unit, "seems odd at first blush." Opposition at 8. The Union points out, however, that the RD determined that there were no changed circumstances in that employee's position since the election and, although the employee had some confidential duties, the position remained in the bargaining unit. The Union maintains that under Authority precedent, such as FTC I, 15 FLRA 247, the parties are held to their earlier agreement regarding employees' inclusion in or exclusion from the bargaining unit, absent changed circumstances. Therefore, the Union contends that the RD appropriately applied longstanding Authority precedent and determined that the Attorney-Advisor, CU 905-15, remained in the bargaining unit because there were no changed circumstances in the performance of the duties of that position.

The Union also asserts that the Agency's claim that there is a genuine issue as to whether the RD applied established law is nothing more than an attempt to relitigate the case, repeating claims not supported by the evidence of record or rejected by the RD as not credible. According to the Union, the RD properly applied the well-settled law regarding confidential employee status and federal personnel work in other than purely clerical capacity. Thus, for the reasons noted, the Union argues that the Agency's application for review should be denied.

IV. Analysis and Conclusions

Under § 2422.31(c) of the Authority's Regulations, the Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds: (1) The decision raises an issue for which there is an absence of precedent; (2) Established law or policy warrants reconsideration; or (3) There is a genuine issue over whether the Regional Director has: (i) Failed to apply established law; (ii) Committed a prejudicial procedural error; (iii) Committed a clear and prejudicial error concerning a substantial factual matter.

A. The Attorney-Advisor, CU 905-15, Position Must Be Excluded
from the Bargaining Unit as a
Confidential Employee

Although the Agency asserts that "established law warrants reconsideration," AFR at 1-2, we construe the assertion, consistent with the substance of the Agency's argument, as a claim that the RD failed to apply established law. Section 7112(b) of the Statute provides that "(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes . . . (2) a confidential employee[.]" Section 7103(a)(13) of the Statute defines a "confidential employee" as "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]" Applying this definition, the RD determined that the Attorney-Advisor, CU 905-15, is a confidential employee in relation to the Human Resources Specialist who is the contact point with the Union. See Decision at 22, 23, 25 n.8.

Upon careful review of the record and the RD's findings of fact, we agree with the RD that the Attorney- Advisor, CU 905-15, is a confidential employee. In this regard, the record establishes that the Attorney-Advisor consults and discusses the Agency's response to the Union's requests for information, both under the Statute and under FOIA, with the Human Resources Specialist. See United States Dep't of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1382-83 (1990).

Contrary to the RD's decision, the Authority will not refuse to resolve a statutory bargaining unit exclusion issue in the absence of meaningful change. In fact, the Authority has resolved such issues. In Fort Shafter, 53 FLRA at 1603, the Authority rejected the argument that the parties' agreement to include a position in the bargaining unit precluded the exclusion of the position based upon statutory grounds. We, therefore, conclude that the RD failed to apply established law when he found the Attorney-Advisor, CU 905-15 position to be confidential in nature but nevertheless failed to exclude it from the bargaining unit as a result thereof. Accordingly, we grant the application for review as to this position and exclude it from the bargaining unit under § 7112(b)(2) because the employee is a confidential employee under § 7103(a)(13). [n2] [ v61
p352 ]

B. The Five Other Positions Are Properly Included In the
Bargaining Unit

The Agency challenges the RD's determinations regarding the five other positions at issue solely on the ground that the RD did not correctly apply established law in determining that four of the employees were not confidential employees, and one employee was not engaged in personnel work in other than a purely clerical capacity. In that regard, the Agency argues that the record clearly warrants the conclusion under Authority precedent that these employees should be excluded from the bargaining unit for the noted reasons. However, the Agency does not assert that the RD's factual determinations regarding these requested exclusions are erroneous. Because the RD's application of the law is consistent with his findings, the Agency's arguments provide no basis for concluding that the RD erred in his application of Authority precedent when he found that none of these employees should be excluded from the bargaining unit. See, e.g., Soc. Sec. Admin., 60 FLRA 590, 592 (2005). Therefore, we deny the application for review on this ground.

V. Order

We grant the application for review on the ground that the RD failed to apply established law and find that that Attorney-Advisor, CU 905-15, is a confidential employee within the meaning of § 7103(a)(13) of the Statute and, thus, must be excluded from the bargaining unit pursuant to § 7112(b)(2) of the Statute. The five other positions at issue are properly included in the bargaining unit.

Footnote # 1 for
61
FLRA No. 63
- Authority's Decision

In this latter regard, the RD cited United States Dep't of the Army, United States Army Law Enforcement Command Pac., Fort
Shafter, Haw., 53 FLRA 1602, 1603 (1998) (Fort Shafter).

Footnote # 2 for
61
FLRA No. 63
- Authority's Decision

In light of this determination that the meaningful change precedent does not apply where the application involves a statutory
exclusion, and because all the positions here involve a statutory exclusion, there is no need to resolve the Agency's argument that
there is a lack of precedent regarding the definition of "meaningful change." Nonetheless, we note that the Authority has
addressed "meaningful change" in a number of cases, including United States Dep't of Veterans Affairs, Veterans Affairs Med.
Ctr., Allen Park, Mich., 43 FLRA 264, 266 (1991) and United States Dep't of the Air Force, Langley Air Force Base, Va.,
40 FLRA 111, 116 (1991).